By http://profile.typepad.com/1237764140s22740 //
January 30, 2013
in Property Rights

It's okay to talk about sports on Counselor @ Law because this story is really about intellectual property.

Check that. The story is about where intellectual property meets cultural property.

Some background: Seattle, Vancouver and Portland have soccer clubs that, of late, play in the professional league known as MLS.

But before any of Seattle, Vancouver and Portland joined MLS, the three were in other leagues, and over years a rivalry developed.

Fans put a name to the rivalry and to the trophy awarded to the yearly champion: the Cascadia Cup.

(Side note: "Cascadia" has connotations difficult for people who don't live along the Vancouver/Seattle/Portland corridor to understand. It is a transnational (maybe even a secessionist) concept. These subversive connotations are fitting for the soccer rivalry insofar as they suggest that loyalty to the sport runs deeper than national identity.)

Comes now the MLS, looking to capitalize on the goodwill associated with regional rivalries among member MLS teams. According to this story from the AP:

"The MLS has . . . applied to trademark other rivalries, including the Rocky Mountain Cup, the Brimstone Cup between the Chicago Fire and FC Dallas, and the California Clasico between the San Jose Earthquakes and the L.A. Galaxy."

The MLS wants to treat "Cascadia Cup" as MLS IP as well, but a consortium of Seattle, Vancouver and Portland soccer fan clubs have organized to assert their own, prior rights in the trademark. See this assessment of the clash from Michael Atkins, who also links to the trademark applications at issue.

On the most recent Nos Audietis podcast, former soccer player and current TV soccer commentator Alexi Lalas seemed to suggest that the fan group should defer to the beneficence of the league. Here's what he said in answer to a question about whether it would be realistic for the MLS to newly brand the regional rivalry and ignore the Cascadia Cup mark:

"Oh yeah, it is certainly realistic.

"I see first and foremost them [the league and the fan group] getting together, them talking. I think from a CCC [Cascadia Cup Council, the fan group] perspective, they should first let MLS explain themselves much better, and let them give them detailed, point by point by point, 'this is how we are going to make your Cup better, and this is why the ownership, or being the custodians, of this Cup, is going to help it become better and become even something greater than you ever imagined. And this is why having it greater than you ever imagined is going to be good for you, and maybe even,' appealing to their sense of greater good, 'and why it is going to be good for this league and this sport that you, at least on the surface, purport that you believe in.' I think that's first and foremost hat has to happen.

"With regards to the other possibility, where they just napalm the whole thing and say 'okay fine, it's still yours, go ahead, enjoy it, do what you want to do, but there will be no mention of it, there will be no recognition of it from a league nor from a team standpoint going forward; and if it's this clandestine type of out back, alley way, post-game presentation to a player who will remain anonymous, then so be it.'

"I hope it doesn't get to that, because what will mean is that they [the MLS] will create their own version of it, and it will be diluted, and it will lack any authenticity or credibility, and it will serve to further distance the very people that are going to drive, as I said, the very fuel that is hopefully going to ignite this to something bigger and better. That would be disappointing to me, not just from a Cascadia Cup perspective, but from a soccer perspective. Because if there is one thing I think we can all agree on, it's that in order for this game to continue to go forward, there has to be communication, there has to be cooperation, and to be quite honest, that's how we've gotten so far in such a relatively short period of time. And if it starts splintering off, that can lead to big, big problems."

I think Lalas is too quick to concede that a typical, advertising sponsorship path is the right way to exploit this particular mark. But I do think he's right that the parties should focus on what they want the Cascadia Cup to mean in the coming years.

The framework for the solution is this: MLS should acknowledge the prior rights of the supporters group in the Cascadia Cup mark, assign its Candian registration to the supporters group, and decline to oppose the application that the supporters group has made in the US; in exchange, the supporters should give MLS a multi-year license to use the Cascadia Cup mark according to branding guidelines that are mutually acceptable.

The negotiations should be about the branding guidelines for the Cascadia Cup mark.

Washington State legislators have introduced a bill (pdf) in the Washington State Senate that would make it unlawful for employers to ask employees or job applicants for passwords to social networking accounts.

If it passes, Washington will join at least six other states with similar laws.

Comparing the Washington bill against the six state statutes we know of, the Washington bill is model most closely after the Illinois Act.

Here is a link to a redline (pdf) that takes the Illinois Act as the baseline and tracks changes in the Washington Senate bill against that. The comparison highlights how the sponsors of the Washington bill are dropping a couple of exceptions that would benefit employers; presumably the Washington legislators have seen the Illinois bill (or something very much like it) and have deliberately chosen to leave out some of the employer-friendly exceptions?

Among the express exceptions to be found in one or more of the other state statutes:

email;

passwords for employer devices;

actions taken to facilitate investigations of misconduct or illegal behavior.

I'm noticing different lawyers reacting differently to these laws, depending on whether they feel individual privacy protection should extend to online activities beyond or other than those on Facebook, Twitter, LinkedIn and their ilk.

For instance, Eric Goldman faults the California statute for imprecision; he thinks the California definition of "social media" fails because it can include everything. By contrast, the group of internet lawyers issuing “grades” on this blog generally preferred the statutes that try, like California’s, to protect a broader set of online activities.

I must admit to being skeptical as to whether laws like these are needed. But maybe, with Facebook use being so ubiquitous now, there is actually a problem out there with overreaching employers, something legislators are picking up on.

He approached his inquiry in a provocative way, the better to tease out how "license," as a term, might have denotations or connotations that could not be captured by the contractual promise, "I will not to sue you over your use of my software."

That's the perspective of the legal craftsperson, one who wants to find the tools to properly outfit a contract for the job at hand.

Leap over to Fred Wilson's blog this morning, where a discussion is ongoing in the comments over whether a subscription model is really just a form of license model, subscriptions being merely the business terms for hosted application licenses.

The consensus of Fred's community is that, for licensor and licensee alike, pay-as-you-go models are vastly superior to enterprise and other up-front license models; but a "subscription" remains a kind of license.

I buy it, though the contract drafter in me wonders if consistent use of the term "subscription" may end up making a legal difference. Just as "license" may resonate with more meaning than a covenant not to sue.

To the extent that "subscriptions" are eventually expressed more like "terms of service," or the rent of a seat to get from A to B (to use commercial airline travel as a metaphor), might there be fewer property-like rights entwined in a subscription relationship? Arguably, "license" carries connotations that go deeper than a contract right, almost as though a licensee has an IP interest (delimited by the scope of the license, to be sure) in the software itself, not simply the use of it.

By http://profile.typepad.com/1237764140s22740 //
January 27, 2013
in Net Neutrality

It sure looks like Senator Ron Wyden of Oregon is gearing up to pursue a neutral internet agenda in the 113th Congress.

This month at CES (I wasn't there; I'm looking at prepared remarks), he gave a speech that concluded, "insurgents should be afforded the same opportunities in the marketplace as incumbents."

There are probably several fronts on which to pursue this agenda, but today I want to focus just a moment on one of them: bandwidth restrictions, or "data caps," imposed by ISPs.

At the tail end of the last Congress, Sen. Wyden introduced a bill, the Data Cap Integrity Act of 2012, which proposed that ISPs be required to submit their data cap policies to the FCC, and that the agency then "determine whether the data cap functions to reasonably limit network congestion in a manner that does not unnecessarily discourage use of the Internet."

That's a vague standard, "discourage use of the Internet," and the adverb, "unnecessarily," is potentially a huge loophole. But the intent of the bill is more apparent from this provision:

"DISCRIMINATION OF CONTENT.—A covered Internet service provider may not, for purposes of measuring data usage or otherwise, provide preferential treatment of data that is based on the source or the content of the data."

The executive of a big cable company that also owns a TV network, lamenting the balkanization of audiences and a freefall in advertising revenue, may well be thinking, "we'll just throttle back on bandwidth for everyone else's shows and privilege ours."

Wyden has his eye on that. He's going to need support because I can imagine the entertainment industrial complex, led by lobbyists like former Senator Chris Dodd, is surely going to resist.

"One of the rubs on Seattle is that the pool of angel investors is not that deep — a perplexing issue given the huge pockets of wealth created in the city in the past 25 years....

"But there’s no brand name angel investor with the drawing power of [Las Vegas-based Tony] Hsieh or the connections of Ron Conway or the rabble rousing of Dave McClure. Seattle needs some of that flowing into the startup community at heavier doses than is currently being administered, if it wants to establish itself as a go-to startup city."

What makes this post especially interesting is the response it drew from Bill Bryant, a mainstay of the Seattle startup investment scene (and someone whom others might put on a list of Seattle brand name angels that John suggests is blank).

"I do agree with John that we could use another 100 angel investors," Bryant commented, "but seriously, let's stop ripping on how bad Seattle is as a startup hub. Its wearisome." Bill draws no inference from the fact that an entrepreneur has left Seattle for Las Vegas, other than that entrepreneur's startup is probably not worth backing.

My own perspective is likely somewhere between John's and Bill's. I think there are many angels in Seattle who don't draw attention to themselves as such; and I think much of the wealth created by the larger tech ecosystem does get channeled into startup activity, of the self-funded variety.

But there's no question first time entrepreneurs without deep connections to (i.e., employment history in) some of the established tech giants find it much more difficult to find seed money in Seattle.

In the comment thread, John says he thinks "real impact could be made with $50M to $100M," presumably meaning a seed financing fund or just some kind of program or pool focused on pre-revenue seeding of startups.

By http://profile.typepad.com/1237764140s22740 //
January 25, 2013
in Housekeeping, Quora

Joe Wallin gave me a heads up that Quora had launched a new blog product on the Quora domain.

That's interesting.

When Quora launched, I expected most subject matter experts thinking of blogging would decide instead to put their effort into answering Quora questions. Certainly I thought most lawyers inclined to blog would do so, instead of setting up their own domains. But I was wrong about that.

Offhand, the only person I can think of who uses Quora as his primary subject matter sharing storefront is David Rose. I wonder if the new blog feature will cause others to invest more online identity there.

Me, I never considered leaving this domain for Quora. But I was once taken with the service to the extent that I asked Adam Hindman to build a page for Counselor @ Law that would pull in Quora answers. That page ran for a while, but when my interest in Quora waned, I shut that page down.

I have once before toyed with the idea of an incidental, backchannel blog, a place to post random thoughts as they occur, whether or not those thoughts were grist for a daily post here at the flagship. Not promising that I will throw myself robustly into the new Quora blogging platform, but I'll experiment with using Quora in such a manner, see what happens. Here's the link: http://wac6.quora.com/.

Photo: "Applying filling to a channel back chair, 1936," US National Archives / Flickr.